Bond Bros. v. Kay

• Court: Alabama Supreme Court
• Writing for the Court: THOMAS, J. THOMAS, J.
• Citation: Bond Bros. v. Kay, 223 Ala. 431, 136 So. 817 (Ala. 1931)
• Decision Date: 18 June 1931
• Docket Number: 8 Div. 315.
• Parties: BOND BROS. v. KAY ET AL.

136 So. 817

223 Ala. 431

BOND BROS. v. KAY ET AL.

8 Div. 315.

Supreme Court of Alabama

June 18, 1931

Rehearing Denied Oct. 15, 1931.

Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.

Action on account and contract by B. F. Kay and J. A. Kay, partners doing business as B. F. Kay & Son, against Bond Brothers. From a judgment for plaintiffs, defendants appeal. Transferred from Court of Appeals.

Affirmed.

Julian Harris, of Decatur, for appellants.

Tennis Tidwell, of Decatur, for appellees.

THOMAS J.

The claimant as originally filed was in two counts, each claiming the amount sued for, due by account for goods, wares, and merchandise sold and delivered to W. B. Goodson by plaintiffs at the special instance and request of defendant. The pleas thereto were the general issue and the statute of frauds viz., that the promise was not in writing to answer for debt default, or miscarriage of another.

At the trial the complaint was amended by adding six additional counts. Some of these counts were eliminated by demurrer and some charged out by the court; and counts 4, 5, and 8 were left.

Demurrer to count 4 was overruled, and the defendant pleaded the general issue and no consideration for the promise to pay the plaintiffs the Goodson debt. And count 5 averred that Goodson contracted the debt with plaintiffs and the defendant promised to pay if they would release Goodson, and that plaintiffs did release Goodson, but defendant failed to pay the account contracted by Goodson. Issue was joined on this count and judgment was for plaintiffs.

The controverted questions of fact under the pleadings were Whether the credit for goods and merchandise was to plaintiffs or to their subcontractor, Goodson. On this issue there was conflict in the testimony and the record evidence, and a jury question was presented (McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135), and whether there was a binding new agreement to pay the plaintiffs by defendant and a new debt created on which the former acted and released Goodson. La Duke v. Barbee & Co., 198 Ala. 234, 73 So. 472.

There was no reversible error in allowing plaintiffs' witness Goodson to say, without objection, that Johnson, the agent for defendant, knew about the Kay account at the time of its alleged assumption (Louisville & Nashville R. R. Co. v. Perkins, 165 Ala. 471, 51 So. 870, 21 Ann. Cas. 1073; Sovereign Camp, W. O. W., v. Hoomes, 219 Ala. 560, 122 so. 686; Norton-Crossing Co. v. Martin, 202 Ala. 569, 81 So. 71; Reliance Life Ins. Co. v. Russell, 208 Ala. 559, 94 So. 748; Southern Rwy. Co. v. Haynes, 186 Ala. 60, 65 So. 339), and knew the substantial amount thereof. The objection did not come until the question, and answer that was responsive to the question to which no objection was interposed. Speculation on such answer may not be indulged and thereafter exception reserved. Washington v. State, 106 Ala. 58, 17 So. 546; McCalman v. State, 96 Ala. 98, 11 So. 408; Billingsley v. State, 96 Ala. 126, 11 So. 409; Liner v. State, 124 Ala. 1, 27 So. 438.

Moreover, Johnson, the agent of defendant, testified that about February, 1927, Kay told him Goodson owed the plaintiffs substantially the amount sued for and interest; and later that Johnson said this during the course of conversation Goodson had with Johnson in 1927 about the account; hence there was no injury to the defendant in the answer, if timely objection had been made and exception duly reserved.

The sufficiency of count 5 is not questioned. Conceding, without deciding, that count 4 was not a sufficient averment, or an allegation by inference, of the agreement to pay plaintiffs, or of their acceptance and release of Goodson, yet the matters and testimony that were pertinent and competent to count 4 were introduced under count 5; hence the sufficiency of count 4, when attacked by demurrer, will not be determined on appeal (Henderson Law Co. v. Hinson, 157 Ala. 640, 47 So. 717; Anderson v. Robinson, 182 Ala. 615, 62 So. 512, 47 L. R. A. [N. S.] 330, Ann. Cas. 1915D, 829) as reversible error.

Refusal of charge 21 is urged by appellant as error. It reads:

"Gentlemen of the jury, if you are reasonably satisfied from the evidence that the defendant, Bond Brothers had a right under its contract with Goodson to take the work over upon his default, and that such default was made by Goodson, then any promise made by the defendant to Godson to pay Goodson's debt to the plaintiffs would be without consideration if the only consideration was Goodson's agreement to release defendant from its obligation to furnish advancements to him, and plaintiffs could not recover on such promise.

"Refused: W. W. Callahan, Judge."

In Mayerson v. New Idea Hoisery Co., 217 Ala. 153, 115 So. 94, 97, 55 A. L. R. 1231, there was a mere naked promise from one to another for the benefit of a third person, and it was declared that same "will not sustain an action." Here, there was a promise that plaintiffs would "release Goodson," and it is alleged and proven that plaintiffs did so release such third person. This was a sufficient consideration for the new agreement between plaintiffs and defendant. La Duke v. Barbee & Co., 198 Ala. 234, 73 So. 472. The plaintiffs met the burden of showing the promise and agreement, their acceptance on the condition or consideration indicated, and that they (plaintiffs) did release Goodson from the original...